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HomeMy WebLinkAboutC17-244 Kilgore Companies LLC dba Elam ConstructionAGREEMENT FOR THE 2017 OVERLAY PROJECT BETWEEN EAGLE COUNTY, COLORADO AND KILGORE COMPANIES, LLC d/b/a ELAM CONSTRUCTION THIS AGREEMENT ("Agreement') is dated as of 06/29/2017 , by and between Eagle County, Colorado, a body corporate and politic, acting by and through its Board of County Commissioners (hereinafter called "County' or "Owner"), and Kilgore Companies, LLC, a Delaware limited liability company doing business as Elam Construction with its principle place of business at 556 Struthers Avenue, Grand Junction, CO 81501 (hereinafter called "Contractor"). County and Contractor, in consideration of the mutual covenants set forth herein, agree as follows: ARTICLE 1— WORK 1.1 The project which is the subject hereof is generally described as the 2017 Overlay Project Project #2 (the "Project"). Contractor shall perform all the work required by the Contract Documents or reasonably inferable therefrom, for the complete construction of the Project in accordance with the Contract Documents (the "Work"). Except as otherwise provided in the Contract Documents, the Work shall include and Contractor shall provide and furnish all materials, supplies, equipment, tools, implements, all other facilities, and all labor and supervision, security, transportation, storage and all other services as and when required for or in connection with the complete construction of the Project. The Work is generally specified in Exhibit A ("Contractor's Bid Form") as Project #2 and Exhibit B ("Special Provisions") for Project #2, which are attached hereto and incorporated herein by this reference. The Work includes construction zone traffic control, materials sampling, testing, inspection and the special provisions contained in Exhibit B. In the event of any conflict or inconsistency between the terms of Exhibits A or B and the terms and conditions set forth in this Agreement, the terms and conditions set forth in this Agreement shall control. 1.2 If the Work is taking place on property owned by other federal, state or local governmental entities, or a public utility or other third party, Contractor shall comply with any additional terms and conditions required by applicable law and (or) permits. 1.3 Capitalized terms that are not defined in this Agreement shall have the meanings ascribed to them in the General Conditions and (or) the Contract Documents, as applicable. ARTICLE 2 - REPRESENTATIVES 2.1 The Project is under the authority of the Eagle County Road and Bridge Department, the Director of which, or his designee, shall be Owner's liaison with Contractor with respect to the performance of the Work. C 17-244 2.2 The Eagle County Road & Bridge Director shall be authorized to sign change orders modifying the scope of work and associated compensation within the budget constraints set for the Project. Change orders in excess of the budgeted amount must be signed and approved by the Board of County Commissioners. 2.3 Contractor's representative is Russell Larsen, Chief Operating Officer. 2.4 Neither Owner's nor Contractor's representative(s) shall be changed with less than ten (14) days' prior written notice to the other party. ARTICLE 3 - CONTRACT TIME 3.1 Contractor shall diligently and continuously prosecute the Work and shall complete the Work and be ready for final payment in accordance with the Contract Documents on or before October 31, 2017 (the "Contract Time"). 3.2 Time is of the essence. By executing the Agreement, Contractor confirms that the Contract Time is a reasonable period for performing the Work. Contractor shall proceed expeditiously with adequate forces and shall complete the Work within the Contract Time. No modifications shall be made to the Contract Time unless a written Change Order is executed by Owner in accordance with the Contract Documents. 3.3 Contractor shall employ all such additional labor, services, and supervision, including such extra shifts and overtime, as may be necessary to maintain progress in accordance with the Project Schedule and complete the Work within the Contract Time, all without an increase in the Unit Prices. Should it appear to Owner at any time that Contractor is in danger of failing to comply with the Project Schedule, Contractor shall cause its employees, subcontractors and all other parties covered by the Contract Documents to perform and work at hours and on days, in addition to the normal working hours and working days, whatever overtime work or shift work is necessary to comply with the Project Schedule and with no adjustment to the Unit Prices or Base Bid Price. 3.4 LIQUIDATED DAMAGES: Owner and Contractor recognize that time is of the essence of this Agreement and that Owner will suffer financial loss if the Work is not complete and ready for final payment within the time specified in paragraph 3.1 above, plus any extensions thereof allowed in accordance with the General Conditions. They also recognize the delays, expense, and difficulties involved in proving in a legal or arbitration proceeding the actual loss suffered by Owner if the Work is not completed on time. Accordingly, instead of requiring such proof, Owner and Contractor agree that as liquidated damages for delay (but not as a penalty) Contractor shall pay Owner Three Hundred dollars ($340.00) for each day that expires after the time specified in paragraph 3.1 for completion until the Work is complete. ARTICLE 4 - TERMINATION 4.1 County may terminate this Agreement, in whole or in part, for any reason, at any time, with or without cause. Any such termination shall be effected by delivery to Contractor of a written notice of termination ("Notice of Termination") specifying the date upon which termination becomes effective. In such event, Contractor shall be compensated for all materials 2 and Work satisfactorily performed and accepted by County prior to the date of termination. Any guarantees, or warranties with respect to the materials and Work performed shall survive termination. Any indemnification set forth in the Contract Documents shall survive termination. ARTICLE 5 — BASIS FOR PAYMENT 5.1 Contractor acknowledges that Owner is a tax-exempt entity and that Owner has appropriated funds for this Project in a sum equal to or in excess of the Base Bid Price. 5.2 Upon and subject to the provisions and conditions of this Section 5 and as set forth in the Contract Documents, Owner shall pay Contractor, for Contractor's performance of the Work under the Contract Documents, in accordance with the unit prices set forth in Contractor's Bid Form for Project #2, attached here to as Exhibit A (the "Unit Prices"). The total compensation for Contractor's Work on the Project shall not exceed $396,950.75 ("Base Bid Price"). The Base Bid Price was calculated by the parties based upon the Unit Prices set forth in Contractor's Bid Form. 5.3 The Base Bid Price includes, without limitation, the entire amount of overhead and profit payable to Contractor in connection with the Work under the Contract Documents. Contractor shall not have the right to, nor shall it seek to recover, any additional compensation for overhead and profit. Unit quantities actually incorporated in the Project may be adjusted subject to the not to exceed Base Bid Price in Section 5.2 above and in accordance with the Contract Documents. In no event shall the Unit Prices set forth in Exhibit A (Contractor's Bid Form) be adjusted. 5.4 Where the quantity of Work with respect to any item that is covered by a Unit Price differs materially and significantly from the quantity of such Work indicated in the Contract Documents, an appropriate Change Order (additive or deductive) may be issued with written approval of Owner in accordance with the Contract Documents. Notwithstanding the foregoing, in no event will a change modify the Base Bid Price without a Change Order approved by Owner. 5.5 County will not withhold any taxes from monies paid to the Contractor hereunder and Contractor agrees to be solely responsible for the accurate reporting and payment of any taxes related to payments made pursuant to the terms of this Agreement. 5.6 Pursuant to the provisions of Section 24-91-103.6 C.R.S., and notwithstanding anything to the contrary contained elsewhere in the Contract Documents, no Change Order or other form of order or directive by Owner, and no amendment to this Agreement, requiring additional compensable Work to be performed which Work causes the aggregate amount payable under the Agreement to exceed the amount appropriated for the original Agreement, shall be of any force or effect unless accompanied by a written assurance by Owner that lawful appropriations to cover the costs of the additional Work have been made or unless such Work is covered under a remedy -granting provision in the Agreement. 5.7 The signatories to this Agreement aver to their knowledge, that no employee of the County has any personal or beneficial interest whatsoever in the Work, service or property described in this Agreement. Contractor has no interest and shall not acquire any interest, direct or indirect, that would conflict in any matter or degree with the performance of Contractor's Work or services and Contractor shall not employ any person having such known interests. 5.8 Notwithstanding anything to the contrary contained in this Agreement, County shall have no obligations under this Agreement after, nor shall any payments be made to Contractor in respect of any period after December 31 without an appropriation therefore by County in accordance with a budget adopted by the Board of County Commissioners in compliance with Article 25, Title 30 of the Colorado Revised Statutes, the Local Government Budget Law (C.R.S. § 29-1-101 et seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20). ARTICLE 6 — CHANGES IN THE WORK 6.1 Owner, without invalidating the Contract Documents, may order Changes in the Work consisting of additions, deletions or other revisions of the Work, with the Base Bid Price and(or) the Contract Time being adjusted accordingly (individually a "Change" and collectively "Changes"). All such Changes in the Work shall be authorized by "Change Order", and shall be performed pursuant to the Contract Documents. A Change may result in a modification to the quantities set forth in Exhibit A hereto, but any such Change shall be priced in accordance with the Unit Prices. 6.2 Within three (3) business days of receipt of an order for Change(s) from Owner, Contractor shall prepare and submit to Owner, a detailed breakdown (with all supporting documentation) sufficient to enable Owner to determine the effect on the Base Bid Price, if any, and the effect on the Project Schedule, if any, of a proposed Change. Such breakdown and documentation shall reflect all labor, services and materials altered, added, omitted or changed by the proposed Change(s), with the detailed breakdowns, estimates and verification of prices by Contractor and each applicable subcontractor (but with no change in the Unit Prices). Contractor shall not have the right to, nor shall it seek to recover, any additional compensation for overhead and profit. When a Change request requires immediate commencement of Work described, then Contractor shall submit a rough order of magnitude cost estimate within three (3) business days of commencing such Work. Owner will, on a periodic basis and in accordance with the Contract Documents and C.R.S. 24-91-103.6 (2)(c), make period reimbursements for additional Work that is directed by Owner and performed by Contractor until a Change Order is finalized. In no instance, shall the periodic reimbursement be required before the Contractor has submitted an estimate of cost to the Owner for the additional Work to be performed. 6.3 Upon issuance of a Change Order by Owner, Contractor and its subcontractors will perform the Change(s) in the Work incorporated by the Change Order. 6.4 If there is a disagreement regarding the amount of adjustments to the Base Bid Price and(or) Contract Time in a Change Order, the Base Bid Price and the Contract Time shall be adjusted unilaterally by Owner by the amounts shown in the Change Order executed by Owner. Contractor may oppose any such unilateral decisions of Owner only by utilizing the dispute resolution provisions set forth in Section 19.7 the General Conditions and without any stoppage of the Work. As to any adjustments to the Base Bid Price set forth in said Change Order, the same shall be ultimately calculated as set forth in the Contract Documents (without any change in the Unit Prices). 4 6.5 Notwithstanding and pending resolution of any dispute regarding any adjustment in the Base Bid Price or Contract Time with respect to a Change, Contractor shall promptly proceed with Work required by any Change Order issued by Owner. 6.6 No Change Orders or other form of order or directive which requires additional compensable work to be performed may be issued or be effective unless accompanied by a written assurance to the Contractor that lawful appropriations to cover the costs of the additional work have been made or unless such work is covered under a remedy -granting provision of the Agreement. 6.7 Owner will have authority to order minor changes in the Work not involving changes in the Base Bid Price or the Contract Time. Such changes shall be written orders and shall be binding on the Contractor and Owner. Contractor shall carry out such written orders promptly. ARTICLE 7 - CONTRACTOR NOTICE OF CLAIM FOR CHANGE ORDER 7.1 If Contractor contends that any order from Owner or other event or occurrence shall cause Change(s) in the Work entitling Contractor to an adjustment to the Base Bid Price (as the same relates to quantity, but not including Unit Prices) or Contract Time, Contractor shall submit a written Notice of Claim to Owner as set forth in Section 19 of the General Conditions. 7.2 Owner shall review any timely Claim submitted by Contractor. In conducting its review, Owner shall have the right to require Contractor to submit such additional or supporting documents, data and other information as Owner may require. If, upon completion of such review, Owner determines a Change is justified, Owner shall issue a Change Order amending the Base Bid Price (subject to the provisions and conditions of the Contract Documents) or Contract Time or both, as appropriate. Otherwise, Owner may determine not to so issue a Change Order amending the Base Bid Price or Contract Time. If Contractor disputes the determination made by Owner, Contractor shall notify Owner in writing within three (3) business days following receipt of the determination and permit Owner five (S) additional days to reconsider and, if it deems it appropriate, modify its decision. If Owner does not modify its decision and Contractor still disputes Owner's determination, then Contractor may pursue the dispute resolution procedures set forth in Section 19.7 of the General Conditions. Notwithstanding the foregoing, the parties acknowledge and agree that Contractor shall not be entitled to a Change Order unless Contractor submits a written Notice of Claim to Owner and otherwise follows the processes and procedures set forth in Section 19 of the General Conditions within the time limitations set forth in Section 19 of the General Conditions, time being of the essence with respect thereto. 7.3 No Change in the Work, whether by alteration or addition to the Work, shall be the basis of an addition to the Base Bid Price or a change in the Contract Time unless and until such alteration or addition has been authorized by a written Change Order executed and issued in accordance with and in strict compliance with the Contract Documents. Accordingly, no course of conduct or dealings between the parties, nor verbal change orders or express or implied acceptance of alterations or additions to the Work, and no claim that Owner has been unjustly enriched by any alteration or addition to the Work, whether or not there is in fact any such unjust enrichment, shall be the basis for any Claim for an increase in the Base Bid Price or Change in the Contract Time. In the event that a written Change Order is not timely executed and issued in accordance with and in strict compliance with the Contract Documents, time being of the essence with respect thereto, Contractor's rights with respect to such Claims shall be deemed waived. ARTICLE S - PAYMENT PROCEDURES 8.1 Contractor shall submit Applications for Payment in accordance with the General Conditions and Contract Documents. Applications for Payment will be processed as provided in the General Conditions and Contract Documents. 8.2 PROGRESS PAYMENTS: Based upon monthly Applications for Payment submitted in accordance with the General Conditions, Owner shall make monthly progress payments on account of the Base Bid Price on the basis of Contractor's Applications for Payments, as provided below. All progress payments will be on the basis of the progress of the Work. Owner shall have the right to request and inspect supporting documentation for progress payments, including but not limited to receipts and invoices evidencing payments of charges associated with the Work. 8.2.1 Request for progress payments and retainage of funds shall occur in compliance with Paragraph 20 of the General Conditions and C.R.S. §24-91-103. The Owner shall authorize monthly progress payments of properly requested amounts of at least ninety five percent (95%a) of the calculated value of the Work completed. The withheld percentage of the Base Bid Price may be retained until the Work is completed satisfactorily and finally accepted by County as provided for herein. 8.2.2 The period covered by each Application for Payment shall be one calendar month beginning on the first of each month and ending on the last day of the month. 8.2.3 Each Application for Payment shall be based upon the Unit Prices and Base Bid Price and otherwise in accordance with the Contract Documents. Each Application of Payment shall show actual quantities incorporated into the Project for each portion of the Work as of the end of the period covered by such Application for Payment. 8.3 FINAL PAYMENT: Within sixty (50) days of completion and acceptance of the Work by County in accordance with Paragraphs 21 and 22 of the General Conditions, County shall pay the remainder of the Base Bid Price. The final payment shall not be made until after final settlement of this Agreement has been duly advertised at least ten (10) days prior to such final payment by publication of notice thereof at least twice in a public newspaper of general circulation published in Eagle County, and the Board of County Commissioners has held a public hearing, thereupon and complied with C.R.S. §38-25-107. Final payment shall be made in accordance with the requirements of the aforesaid statute. 8.4 County may withhold from any payments due to Contractor, to such extent as may be necessary to protect County from loss, because of defective Work or material not remedied or the failure of Contractor to carry out the Scope of Work in accordance with this Agreement. 8.5. Contractor shall maintain comprehensive, complete and accurate records and accounts of its performance relating to this Agreement for a period of three (3) years following termination, which period shall be extended at County's reasonable request. County shall have the right within such period to inspect such books, records and documents upon demand, with reasonable 6 notice and at a reasonable time. Owner and Owner's accountants shall be afforded access to, and shall be permitted to audit and copy Contractor's records, books, correspondence, instructions, drawings, receipts, Subcontracts, purchase orders, vouchers, memoranda and other data relating to the Contract Documents. All documents (including electronic files) which are obtained during or prepared in the performance of the Work shall remain the property of Owner and are to be delivered to Owner before final payment is made to Contractor or upon earlier termination of this Agreement. 8.6 In taking action on Contractor's Applications for Payment, Owner shall be entitled to rely on the accuracy and completeness of the information furnished by Contractor and shall not be deemed to represent that: (i) Owner has made a detailed examination, audit or arithmetic verification of the documentation submitted by Contractor; (ii) Owner has made exhaustive or continuous on-site inspections of the Work; or (iii) Owner has made examinations to ascertain how or for what purposes Contractor has used amounts previously paid on account of the Base Bid Price. 8.7 The Contractor acknowledges that payment shall be made in accordance with C.R.S. 24- 91-103 and C.R.S. 38-26-107 and hereby waives its right to lien the property that is the subject of the Project. Contractor shall include the language of this paragraph in any subcontracts for the Project. ARTICLE 9 — CONTRACTOR'S REPRESENTATIONS In order to induce County to enter into this Agreement Contractor makes the following representations: 9.1 Contractor has familiarized himself with the nature and extent of the Contract Documents, Work, locality, and with all local conditions, and federal, state, and local laws, ordinances, rules and regulations that in any manner may affect cost, progress, or performance of the Work. 9.2 Contractor has made, or caused to be made, examinations, investigations, and tests and studies of such reports and related data as he deems necessary for the performance of the Work at the Base Bid Price, within the Contract Time, and in accordance with other terms and conditions of the Contract Documents; and no additional examinations, investigations, tests, reports, or similar data are, or will be required by Contractor for such purposes. 9.3 Contractor has correlated the results of all such observations, examinations, investigations, tests, reports, and data with the terms and conditions of the Contract Documents. 9.4 Contractor has given Owner written notice of all conflicts, errors, or discrepancies that he has discovered in the Contract Documents and the written resolution thereof by Owner is acceptable to Contractor. 9.5 In performing the Work under this Agreement, the Contractor acts as an independent contractor and is solely responsible for necessary and adequate worker's compensation insurance, personal injury and property damage insurance, as well as such other insurance required by the Contract Documents. The Contractor, as an independent contractor, is obligated to pay federal and state income tax on moneys earned. The personnel employed by the Contractor are not and shall not become employees, agents or servants of the Owner because of the performance of any Work by this Agreement. 9.6 All guarantees and warranties related to the materials furnished to Contractor by any manufacturer or supplier, if any, are for the benefit of County. 9.7 Within the time set forth in the General Conditions or if no time is set forth therein then within a reasonable time after receipt of written notice as more fully set forth in the General Conditions, Contractor shall correct at its own expense, without cost to County any defects or deficiencies in the Work. 9.8 Guarantees and warranties, if any, shall not be construed to modify or limit any rights or actions County may otherwise have against Contractor in law or in equity. 9.9 The intent of the Contract Documents is to include all items reasonably necessary for the proper execution and completion of the Work. Based on Contractor's careful review of the Contract Documents, Contractor acknowledges that the Contract Documents require a completed Project in accordance with the terms hereof. 9.10 Contractor acknowledges that whenever any public works project is financed in whole or in part by funds of the County, Colorado labor shall be employed to perform at least 80% of the Work. Contractor shall comply with this requirement. ARTICLE 10 - CONTRACT DOCUMENTS The "Contract Documents" which comprise the entire Agreement are made a part hereof, and consist of the following: 10.1 This Agreement. 10.2 Contractor's Bid Form for Project #2 attached as Exhibit A. 10.3 Special Provisions and Supplementary Information for Project #2, if any, is attached as Exhibit B. 10.4 General Conditions attached as Exhibit C. 10.5 Insurance Certificate(s) as Exhibit D. 10.6 Project Schedule. 10.7 Performance and Payment Bonds. 10.8 Notice of Award and, if any, Notice to Proceed. 10.9 Addendum(s). 10.10 Any modification or amendment, including Change Orders, duly delivered after execution of Agreement. The parties acknowledge and agree that this Agreement and the General Conditions attached hereto, shall supersede and control over any inconsistent or contrary provision in any other attachment or agreement. There are no Contract Documents other than those listed above in this Article 10. The Contract Documents may only be altered, amended, or repealed by an executed, written amendment to this Agreement signed by each party. ARTICLE 11— BONDS 11.1 Contractor shall deliver to the County the bonds required by the Contract Documents with the executed Contract Documents and before starting Work. Notwithstanding anything to the contrary contained in the Contract Documents, the County shall have no liability or obligation hereunder unless and until the bonds have been so delivered. ARTICLE 12- SUBCONTRACTS AND OTHER AGREEMENTS 12.1 Those portions of the Work that Contractor does not customarily perform with Contractor's own personnel shall be performed under subcontracts and (or) by other appropriate agreements with Contractor (individually a "Subcontract" and collectively "Subcontracts"). 12.2 All Subcontracts shall conform to provisions of this Agreement. The County shall have the right to review and approve each form of Subcontract. By an appropriate written agreement, Contractor shall require the subcontractor to the extent of the Work to be performed by the subcontractor, to be bound to Contractor by the terms of the Contract Documents and to assume toward Contractor all the obligation and responsibility which Contractor, by these Documents, assumes towards the County. Said agreement shall preserve and protect the rights of the County under the Contract Documents with respect to the Work to be performed by the subcontractor so that the subcontracting thereof will not prejudice such rights. Contractor shall require each subcontractor to enter into similar agreements with its subcontractors. Contractor shall make available to each proposed subcontractor, prior to the execution of the Subcontract, the Contract Documents to which the subcontractor will be bound by this paragraph 12.2. Each subcontractor shall similarly make copies of such Contract Documents available to its subcontractors. The County shall have the right to review and approve each form of Subcontract. 12.3 Contractor shall be responsible to the County for the acts and omissions of its agents, employees, suppliers, and subcontractors performing Work under a contract with Contractor and such subcontractors' lower -tier subcontractors, agents and employees. 12.4 Nothing contained in the Contract Documents shall be deemed to create any contractual relationship between any subcontractor of any tier and the County. ARTICLE 13 - MISCELLANEOUS 13.1 No assignment by a party hereto of any rights under, or interests in this Agreement will be binding on another party hereto without the written consent of the party sought to be bound; and specifically, but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. 13.2 County and Contractor each binds himself, his partners, successors, assigns and legal representatives to the other party hereto, in respect to all covenants, agreements, and obligations contained in the Agreement. 13.3 This Agreement represents the entire Agreement between the parties hereto. This Agreement supersedes all previous communications, negotiations and/or contracts between the respective parties hereto, either verbal or written, and the same not expressly contained herein are hereby withdrawn and annulled. This is an integrated agreement and there are no representations about any of the subject matter hereof except as expressly set forth in the Contract Documents. 13.4 Invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed as if such invalid or unenforceable provision was omitted. 13.5 This Agreement may be amended upon mutual agreement, in writing, signed by both parties. 13.6 NOTICE: Any notice and all written communications required under this Agreement shall be (i) personally delivered, (ii) mailed in the United States mails, first class postage prepaid, or (iii) transmitted by facsimile machine together with a hard copy conveyed by delivery or mail, to the appropriate party at the following addresses: County: Board of County Commissioners, Eagle County, Colorado 500 Broadway P. O. Box 850 Eagle, CO 81631 Telephone: (970) 328-8605 Fax: (970) 328-7207 With a copy to: Eagle County Attorney 500 Broadway Post Office Box 850 Eagle, CO 81631 Telephone: 970-328-8685 Facsimile: 970-328-8699 to With a copy to: Eagle County Road & Bridge P. O. Box 250 Eagle, CO 81631 Telephone: (970)328-3540 Fax: (970) 328-3546 Contractor: Kilgore Companies, LLC d/b/a Elam Construction (local office) 240 Airpark Dr. Gypsum, CO 81637 Corporate Office: 556 Struthers Avenue Grand Junction, CO 81541 Telephone: 970-926-5411 Facsimile: 970-926-5465 Mailed notices will be deemed given three business days after the date of deposit in a regular depository of the United States Postal Service, and fax notices will be deemed given upon transmission, if during business hours, or the next business day. Either party can change its address for notice by notice to the other in accordance with this paragraph. 13.7 The Contractor, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that he or she (i) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (ii) to the extent applicable shall comply with C.R.S. 24- 76.5-103 prior to the effective date of this Agreement. 13.8 Any indemnity, warranty or guaranty given by Contractor to Owner under the Contract Documents shall survive the expiration or termination of the Contract Documents and shall be binding upon Contractor until any action thereunder is barred by the applicable statute of limitations or as otherwise expressly provided by the Contract Documents. ARTICLE 14 - JURISDICTION AND VENUE 14.1 This Agreement shall be interpreted in accordance with the laws of the State of Colorado and the parties hereby agree to submit to the jurisdiction of the courts thereof. Venue shall be in the District Court of Eagle County, Colorado. ARTICLE 15 - PROHIBITIONS ON PUBLIC CONTRACT FOR SERVICES As used in this Article 15, the term undocumented individual will refer to those individuals from foreign countries not legally within the United States as set forth in C.R.S. 5-17.5-141 et. seq. If Contractor has any employees or subcontractors, Contractor shall comply with C.R.S. § 5-17.5- 101, et seq., and this Contract. By execution of this Contract, Contractor certifies that it does not knowingly employ or contract with an undocumented individual who will perform under this Contract and that Contractor will participate in the E -verify Program or other Department of Labor and Employment program ("Department Progxam") in order to confirm the eligibility of all employees who are newly hired for employment to perform Work under this Contract. 15.1. Contractor shall not: (i) Knowingly employ or contract with an undocumented individual to perform work under this contract for services; or (ii) Enter into a contract with a subcontractor that fails to certify to the Contractor that the subcontractor shall not knowingly employ or contract with an undocumented individual to perform work under the public contract for services. 15.2. Contractor has confirmed the employment eligibility of all employees who are newly hired for employment to perform work under this Contract through participation in the E -verify Program or Department Program, as administered by the United States Department of Homeland Security. 15.3. The Contractor shall not use either the E -verify program or other Department Program procedures to undertake pre-employment screening of job applicants while the public contract for services is being performed. 15.4. If the Contractor obtains actual knowledge that a subcontractor performing Work under the public contract for services knowingly employs or contracts with an undocumented individual, the Contractor shall be required to: (i) Notify the subcontractor and the County within three days that the Contractor has actual knowledge that the subcontractor is employing or contracting with an undocumented individual; and (ii) Terminate the Subcontract with the subcontractor if within three days of receiving the notice required pursuant to subparagraph (i) of the paragraph 15.4 the subcontractor does not stop employing or contracting with the undocumented individual; except that the Contractor shall not terminate the contract with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an undocumented individual. 15.5. The Contractor shall comply with any reasonable request by the Department of Labor and Employment made in the course of an investigation that the department is undertaking pursuant to its authority established in C.R.S. § 5-17.5-102(5). 15.6. If a Contractor violates these prohibitions, the County may terminate the contract for a breach of the contract. If the contract is so terminated specifically for a breach of this provision of this Contract, the Contractor shall be liable for actual and consequential damages to the County as required by law. 15.7. The County will notify the office of the Colorado Secretary of State if Contractor violates this provision of this Contract and the County terminates the Contract for such breach. ARTICLE 16 —INDEPENDENT CONTRACTOR 12 16.1 It is expressly acknowledged and understood by the parties hereto that nothing contained in this Agreement shall result in, or be construed as establishing, an employment relationship between County and Contractor or County and Contractor's employees. To the extent applicable, Contractor and its employees shall be, and shall perform as, independent contractors. No officer, agent, subcontractor, employee, or servant of Contractor shall be, or shall be deemed to be, the employee, agent or servant of County. Contractor shall be solely and entirely responsible for the means and methods to carry out any services and Work that may be required under this Agreement and for Contractor's acts and for the acts of its officers, agents, employees, subcontractors and servants during the performance of this Agreement. Neither Contractor nor its officers, agents, subcontractors, employees or servants may represent, act, purport to act or be deemed the agent, representative, employee or servant of County. ARTICLE 17 —INSURANCE REQUIREMENTS 17.1 Contractor shall maintain insurance as set forth in the General Conditions. Before permitting any of his subcontractors to perform any Work under this Agreement, Contractor shall require each of his subcontractors to procure and maintain such insurance as set forth in the General Conditions. Certificates of Insurance shall be attached hereto as Exhibit D. 17.2 Contractor's certificates of insurance shall include subcontractors, if any as additional insureds under its policies or Contractor shall furnish to County separate certificates and endorsements for each subcontractor. 17.3 The insurance provisions of this Agreement shall survive expiration or termination hereof. 17.4 The parties hereto understand and agree that the County is relying on, and does not waive or intend to waive by any provision of this Agreement, the monetary limitations or rights, immunities and protections provided by the Colorado Governmental Immunity Act, as from time to time amended, or otherwise available to County, its affiliated entities, successors or assigns, its elected officials, employees, agents and volunteers. 17.5 Contractor is not entitled to workers' compensation benefits except as provided by the Contractor, nor to unemployment insurance benefits unless unemployment compensation coverage is provided by Contractor or some other entity. The Contractor is obligated to pay all federal and state income tax on any moneys paid pursuant to this Agreement. [Rest of Page Intentionally Left Blank] iN WITNESS WHEREOF, the parties have executed this Agreement this 06/29/2017 '24P. COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COUNTY COMMISSIONERS B Le7 � By, Jillian H. Ryan, Chair Attest: By: Regina O'Brien, Clerk to the Board CONTRACTOR: Kilgore Companies, LLC a Delaware limited liability camp 71y? y Ibla Elam Construe' n )9 Fay: Title: Chief Operating Officer State of }ss. County of r nA } The foregoing instrument was acknowledged before me this /"2 day of J tuw , 2017 by �I Lo V- L l A . L-Rt2-5 N (name of person acknowledged), its (title) of (name oi' corporation). NOTARY ftJBLIC Print Name: Rhonda Morgan RHONdA eUSCM MORGAN Notary public _ State of Colorado Notary ID 20174612396 My commission expires: MyComrrmission 2021 14 Exhibit A 2017 Overlay Project — Contractor's Bid Farm for Project #2 Bin AQCKOWLFMGRMENT FORM iHiS BM AC'>ItpiC) ,MiCEMEW FORK MUST BE SURmTrm warm Yom Bni TO; Eagle County Road & Stidge Depwtrrmat Attn: John Horns, Director P.O. Box 250 Eagle, CO 81631 Re: Eagle County 7617 Overlay Pmject Tire undersigned, having earerrtined the lnstruWans to Bidders and arty and all doements related to the above referenced project: (a) agrees to COMPlY with all conditions, requirements, and instmetions of the bid documents as stated or impl led therein; (is) acknowledges the right of Eagle County, in its safe discretion, to reject any or ail bids submitted, and that an award may be made even though not the lowest cot; (c) 8r-k"DWIL*d80S and agrees that the discretion of Evgle County, in selection of the sdccewfui bidder or bidders shall be final, not subject to review or attack; and (d) acknowledges that this bid is made with full kn(Wedgn of the foregoing and full agreement thereto. By submission of this bid, and signature below, the respondent acknowledges that he has the authority to sign this Bid Acknowledgement Form and bind the company nomad below. The bidder farther acknowledges that Eagle county hag the right to make any inquiry or investtptlon it deems apfsmpriate to substantimte or supplement Information contained in the bid and related documents, and authnrlxrs Mime to Eagle County of any and all information mught in such inquiry or investigation, Company Nome: 10 ore GD�nfu, LLC dbar Elam Construction Title of Bidder. ChW Officer Name sof Bidder: aal Signature ofSIdder: ©ate: 4rl -9 —_-- PROJECT#2 Lecattnt5 Dasorl orr CITY Unit UpItprlca AmnpnR Overlay Brush Cnmk Ftp Brush Crook (road lfst see #10, Exhibit 13) -y3��— Ton I-jqq.4-T Road CR 3017 %Wth;kr Of MSP -SX, PG 215" 28 19-.9 EmWsllletl esphal (lack) Gss-tH or 5SAH 2,730 GaftsW "• Materials smpling. loom and Inspr�n (see #12) 1 Lw p sum Colistnlc#iari zone trafficCOMW 1 LUMP SUM13 ,M.6L d TOTAL. FOR PROJECT #2 The iaktal Amount Bid for ftiect 0:2 isan outbid iP14xe tt cnae c krse wdirw tourttj p*Rcftg4 ad emo*j5pa2m no Contract 7IMe: OCtDber3l, 20x7 Cxmtractar Entity r n7c {lass LLC dtaa t Cosutrs�dlcn Wk of Persan510 9 tf ha ods opssatng Chinet cunvactarsfgrsatrire• — . Printed Name ofFarsart a tf RussellA Larssan Attestatlon as regtd Address turd tidephons rx im and stabs vrinaxporaden or formation 240 Ahpark R*, Gyprum. cc 556 66ah-irs Avenue. Lirarsd Jam, Co 81601 (970-242-5370) -- Corporate CWjcglats of InCOMoratime DeLv are The Total Amount [Ud If Awarder! Both FfOitftXl and Pr*ct N2 (If bWdkV on both pr*cft) h - +a lfjaasevrrite oUtbW a,MMMtj BY =WN ebave, blue aclr QWIt die that tutus haus racoM aN ma+rlarmd am k4wft Addenda: Addends No. Addenda No. Addenda No, pale � SUBCONTRACTOR L,IaSTING TlW r'ottawing inrvrm111€0n is submitted %r "chsutrcrtntraclor That will be used In the Work Ythe Bidder 11 awarded the Agrectnent. Additional numbered pages shall be 8119ched ID this page as rcqulred. EKh PAP 5ha11 be treaded "SUBCONTRACTOR LISTING" and signed. All Work to be subatmtracted over S2,000 shall be 1€sled. Amount or Name and Addrns Portion 5 e u t lualbM a ff ff of-Vark 1� tieweisj mTe-"-il &- 3 ,7 Q P76 5— wu) r S7b 6a 31wcawj, Cts BIS -c3 Bid Form f}o3W7 RYCEI Y E D AUB 2 9 2816 CDnIrracts an Meritet Analysis Branch t r-naAA Avrnas,2'+Fkaarr i1ova tla}wwpann i ekpb— (31)3 j 757-930 Obcsimlic (M3)7574967 COLORADO Deparitn mt; of i'lr: nspofttlon Dwkind Et ikaject Support Augtast 35, 3016 Kilgore Campaaics, LIQ dba plates Cvnsfnuction 556 Stntdfcrs Ave„ Limit: Jailatllmlted Gratsrl Junction, co film I- Vendor II?: 1659 ncrc=ce Is made to yourappl€calinn fur ref;istmilan ars as qualiCacd bidder an Cularw.1•iltt�arly a3vd,, darted August I8, 2016, your file Trus b=n ravia:tved tend dticim €ssed in be complctr Yr�ar I va vendor 1D is irulictiarrst u6avc aistl rrattst tae Shown an your bid propaasai. Bids foam a general can1mclor tvtl] be rcrelved sub cc3 to any finaitatlnar l� ubazvvc, WA ►vithdue colds nimcio to 1n anrvasnl af►►arf prccctatly urIckrcortirse!, Fmt iserrortl once aii highwoY contracts, and tlac rarratraatiar's ilnunc€id stains at tlrc IiEne orbidding. It €313Umar atrafcrxtt sd (Ira! the bidder has ova€ialsle Itrc organizalion and -lutpment odcgL=c Tor any ptnjcct nn tvhlcil a bid is srabmi(teal; that Ilia rancroeEar"s organization and equipment will be uyrsitablr iG tend risk Ilse syssrl- on which bids arc currently made, pramlatly truer award atcantracl; and Ilial Ilse Lvark Will bc carried an expeditiously and under proper supervision. Onli Mardi 31.3016, COOT will be updating its bWdinj son1w aac f'mmn AASIYMWare Cxpadile to AASIITOWorc Project Sids. ror 1 -614 -March 34 bid leninp, picaam downlaad trod uIllize lire I"xPedhe srailIMm- We encourage you to also r3aWtIvad the AASIITOiVam lin jccl aids software and obtain new I3i4((01 IDs. This afcl€ce supersedfts ull previous notices. This prquana cation will expire on August 31,20U you must file to Mev appi€eatlon 17 days prior to tiaa! Banc t# rcrrtra€ia a:tarrrrttt. It Is the contrBdees sole responsibility to abiabi and file the necessary romis c2ch y=prim (a cxpimt4an heroes is earl trove be mnde ars die Internet, plcatse sce Instrasctlaans 01 Rcgards. Peter Avbcraaal4e NC-Q=li[icalion Admin himiur Exhibit B 2017 Overlay Project — Special Provisions for Project #2 M EXHIBIT B 2017 OVERLAY PROJECT - SPECIAL PROVISIONS #1. Mill road surfaces to a depth of 2" ( Project 1 ). #2. Hand patch with HMA (hot mix asphalt) any irregularities left from milling process. (Project 1) #3. Contractor shall be responsible for measuring and calculating all quantities for kid. (Project 1 & 2) #4. Material quantities may be adjusted depending on hid results. (Project 1 & 2) #& The hot mix asphalt shall be no less than 250 degrees F behind the paver as it is applied. (Project 1 & 2) #6- Milled asphalt can be hauled to the Eagle County Landfill. (contractor option) (Project 1) #7. Contractor shall be responsible for manhole and valve box counts. (Project 1 & 2) #8. Materials testing and sampling shall be performed at 400 ton intervals. (Project 1 & 2) #9. Contractor shall be responsible for notification of project dates to affected residents and motorists including detours and delays. Contractor shall notify Road and Bridge Director of any necessary detours and provide an MHT. (Project 1 & 2) #10. ROA© LIST: June Creek Road CR 8C1 5.00 (Project 1) Singletree Road CR BC12.00 from June Creek Road to Berry Creek Road (Project 1) Rawhide Road CR BC7.00 (Project 1) Longhorn Road CR BC 16.0{ ( Project 1). Charclais Circle CR BC4.00 (Project 1). Brush Creek Road CR 307 8.4 Mile Marker to the 10.6 Mile Marker (Project 2). #11. Asphalt shall be applied with a 1 "leveling lift and a 1.5" tap lift. (Project 1 & 2) Exhibit C 2017 Overlay Project - General Conditions EXHIBIT C ROAD & BRIDGE DEPARTMENT GENERAL CONDITIONS 1. Contractor shall provide and pay for all labor, materials, equipment, tools, utilities, permits, licenses, transportation, and other facilities and services necessary for proper execution and completion of the Work. 2. If Contractor fails to obtain the tax exemption(s) applicable to public works projects from sales, consumer, use and similar taxes, Contractor shall pay the same. Owner will cooperate with Contractor to obtain tax exemption for this Project. 3. Contractor shall be responsible for having taken steps reasonably necessary to ascertain the nature and location of the Work, and the general and local conditions which can affect the Work or the cost thereof. Any failure by Contractor to do so will not relieve him from responsibility for successfully performing the Work without additional expense to the Owner. Owner assumes no responsibility for any understanding or representations concerning conditions made by any of its officers, employees or agents prior to the execution of the Agreement between the Owner and Contractor, unless such understanding or representations are expressly stated in the Agreement. 4. Before commencing activities, Contractor shall: (1) take field measurements and verify field conditions; (2) carefully compare this and other information known to Contractor with the Contract Documents; and (3) promptly report errors, inconsistencies or omissions discovered to Owner. 5. Contractor shall supervise and direct the Work, using Contractor's best skill and attention. Contractor shall be solely responsible for and have control over construction means, methods, techniques, quality, sequences and procedures, and for coordinating all portions of the Work. Contractor shall submit a project schedule within five (5) days of executing this Agreement for approval by Owner [the "Project Schedule" }. The Project Schedule shall set forth the timeline and milestones for completion of the Work by Contractor on or before the Contract Time. Contractor shall provide regular monitoring, on at least a monthly basis, of the Project Schedule as construction progresses. Further, Contractor shall maintain and deliver to Owner a daily job report of Work performed, notable events and incidents, weather conditions, subcontractor's performance, any deficiencies (and corrective actions taken), delays, and other information that Owner may reasonably request. 6. Contractor, as soon as practicable, shall furnish in writing to the Owner the names of subcontractors and suppliers for each portion of the Work. If requested by Owner, Contractor shall supply any other information concerning the subcontractors background and experience as reasonably requested by Owner. 7. No charge shall be made by Contractor for hindrances or delays from any cause whatever during the progress of any portion of the Work, unless such hindrance or delay is caused in whole or in part by acts or omissions within the control of Owner. In any event, Owner may grant an extension of the Contract Time for the completion of the Work, provided it is satisfied that delays or hindrances were due to causes outside Contractor's control, e.g., weather, or to acts of omission or commission by the Owner, provided that such extensions of time shall in no instance exceed the time actually lost to Contractor by reason of such causes, and provided further that Contractor shall have given Owner immediate (as determined by the circumstances, but not exceeding 48 hours) notice in writing of the cause of the detention or delay. In the event of any disagreement between Owner and Contractor as to the amount of the adjustment to be made to the Contract Time, the amount of the adjustment not in dispute shall be processed as a Change Order and the amount in dispute shall be processed as a Claim under the provisions of Section 7 of the Agreement and Section 19 below. The burden of proof that an event of delay has occurred which should extend the Contract Time as provided for herein shall be borne by the party claiming such to be the case; provided, however, under no circumstances shall there be an adjustment to the Base Bid Price or the individual Unit Prices. 8. Contractor shall deliver, handle, store and install materials in accordance with manufacturers' instructions. Further, Contractor shall perform the Work in strict conformance with the Contract Documents. Contractor shall not be relieved of any obligations set forth in the Contract Documents either by activities or duties of Owner, any consultant, or by tests, inspections or approvals required or performed by persons other than Contractor. Contractor shall arrange for tests, inspections and approvals as required by the Contract Documents. If the Contract Documents require any portion of the Work to be inspected tested or approved, Contractor shall give Owner at least twenty- four (24) hours' notice of its readiness so Owner may observe such inspecting, testing or approval. If Owner determines that any Work requires special inspection, testing or approval not already required by the Contract Documents, Owner may instruct Contractor to order such special inspection, testing or approval. 8.1 Contractor shall supervise, coordinate and direct the Work, continuously monitor the performance of the Work, and inspect the quality and workmanship of the Work for any defects and (or) deficiencies in the Work. Contractor shall enforce strict discipline and good order among its employees and subcontractors and shall require subcontractors to do the same. Contractor shall replace on-site supervision personnel as -needed upon performance and based upon Owner's assessment that the Project is not adequately staffed or the Work is not adequately progressing. 8.2 Contractor agrees that only competent and skilled workmen who satisfactorily perform their duties shall be employed on the Project and Contractor shall ensure that there are an adequate and competent supply of skilled workmen and materials as necessary to carry out the Work on a continuous basis. 9. Contractor shall comply with and give notices required by all federal, state and local laws, statutes, ordinances, building codes, rules and regulations applicable to the Work. If the Contractor performs Work knowing it to be contrary to laws, statutes, ordinances, building codes, rules or regulations without notice to Owner, Contractor shall assume full ra responsibility for such Work and shall bear the attributable costs. Contractor shall promptly notify Owner in writing of any conflicts between the specifications for the Work and such governmental laws, rules and regulations. 10. The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs, including all those required by law in connection with performance of the Agreement. Contractor shall erect and maintain, as required by existing conditions and performance of the Contract Documents, reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations, and notifying owners and users of adjacent sites and utilities. The Contractor shall promptly remedy damage and loss to property caused in whole or in part by the Contractor, or by anyone for whose acts the Contractor may be liable. 11. Contractor shall keep the premises/work site and surrounding area free from accumulation of debris and trash related to the Work. 12. Contractor shall furnish performance and payment bonds, each in an amount at least equal to the Base Bid Price as security for the faithful performance and payment of all Contractor's obligations under the Contract Documents. In the event of any change order resulting in the performance of additional work in connection with the Project, the amounts of such bonds shall be increased by an amount equal to the cost of such additional work or materials or fixtures to be incorporated in the Project. These bonds shall remain in effect at least until one year after the date of final payment, except as otherwise provided by law. Contractor shall also furnish other bonds as are required by the supplementary conditions. All bonds shall be in forms satisfactory to Owner, and be executed by such sureties as (a) are licensed to conduct business in the state where the Project is located, and (b) are named in the current list of "Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies" as published in Circular 570 (amended) by the Audit Staff Bureau of Accounts, U.S. Treasury Department. All bonds signed by an agent must be accompanied by a certified copy of the authority to act. If the surety on any bond furnished by Contractor is declared bankrupt, or becomes insolvent, or its right to do business is terminated in any state where any part of the Project is located, or it ceases to meet the requirements of clauses (a) and (b) of the preceding paragraph, Contractor shall within five days thereafter substitute another bond and surety, both of which shall be acceptable to Owner. 13. Contractor shall be solely responsible for the protection of the Work until its final acceptance by Owner. Contractor shall have no claim against Owner because of any damage or loss to the Work, and shall be responsible for the complete restoration of damaged Work to its original condition. In the event Contractor's Work is damaged by another party, not under his supervision or control, Contractor shall make his claim directly with the party involved. If a conflict or disagreement develops between Contractor and another party concerning the responsibility for damage or loss to 3 Contractor's Work, such conflict shall not be cause for delay in Contractor's restoration of the damaged Work. 14. Contractor's Insurance: The Contractor shall purchase and maintain such insurance as will protect him from claims set forth below which may arise out of or result from the Contractor's operations under the Agreement, whether such operations be by himself, or by any subcontractor, or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. All such insurance shall remain in effect until final payment, and at all times thereafter when Contractor may be correcting, removing, or replacing defective Work. In addition, Contractor shall maintain such completed operations insurance for at least one year after final payment, and furnish Owner with evidence of continuation of such insurance at final payment. Contractor shall maintain insurance coverage for and as follows: Claims under Workmen's Compensation, disability benefits, and other similar employee benefit acts, with coverage and in amounts as required by the laws of the State of Colorado; Claims for damage because of bodily injury, occupational sickness or disease, or death of his employees, and claims insured by usual personal injury liability coverage; Claims for damage because of bodily injury, sickness, disease, or death of any person other than his employees; and Claims for damages because of injury to or destruction of tangible property, including loss of use resulting there from; Contractor's Commercial General Liability Insurance issued to and covering the liability for damage imposed by law upon the Contractor and each subcontractor with respect to all Work performed by them under the Agreement and covering premises operations, fire damage, independent contractors, products and completed operations, personal injury and advertising liability: Contractor's Protective Liability Insurance issued to and covering the liability for damages imposed by law upon the Contractor and each subcontractor with respect to all Work under the Agreement performed for the Contractor by subcontractors. Completed Operations Liability Insurance issued to and covering the liability for damage imposed by law upon the Contractor and each subcontractor arising between the date of final cessation of the Work, and the date of final acceptance thereof out of that part of the Work performed by each. 4 Comprehensive Automobile Insurance covering any vehicle (including owned, hired and non -owned vehicle) shall be carried in the amount of $1,000,0001$2,000,000 for bodily injury and $1,000,000 for property damage, each occurrence. All liability and property damage insurance required hereunder shall be Comprehensive General and Automobile Bodily Injury and Property Damage forms of policies, as the case may be. Insurance covering claims for damages to persons or property required above shall be in the following minimum amounts: Bodily Injury Liability Each Person: $ 2,000,000 Each Accident or Occurrence: $2,000,000 Property Damage Liability Each Accident or Occurrence: $2,000,000 Aggregate: $2,000,000 If any aggregate limit is reduced below $2,000,000 because of claims made or paid, Contractor shall immediately obtain additional insurance to restore the full aggregate limit and furnish to Owner a certificate or other document satisfactory to Owner showing compliance with this provision. Certificates of Insurance: Certificates of Insurance acceptable to the Owner shall be filed with the Owner prior to commencement of the Work. These Certificates shall contain provisions naming the Owner its associated or affiliated entities, its successors and assigns, elected officials, employees, agents and volunteers as additional insureds under Contractor's insurance, and that coverage afforded under the policies will not be cancelled until at least thirty (30) days prior written notice has been given the Owner. Contractor and his subcontractors shall not permit any of his subcontractors to start Work until all required insurance have been obtained and certificates with the proper endorsements have been filed with the Owner. Failure of the Contractor to comply with the foregoing insurance requirements shall in no way waive the Owner's rights hereunder. All insurance policies in any way related to this Agreement and secured and maintained by Contractor as required herein, shall include clauses stating that each carrier shall waive all rights of recovery, under subrogation or otherwise, against County, its agencies, institutions, organizations, officers, agents, employees and volunteers. 15. Owner, at its option, may purchase and maintain such liability insurance as will protect him against claims which may arise from operations under this Agreement. Purchasing and maintaining such insurance, however, will not relieve the Contractor from purchasing and maintaining the insurance hereinbefore specified. 16. Before permitting any of his subcontractors to perform any Work under the Agreement and Contract Documents, Contractor shall either (a) require each of his subcontractors to procure and maintain during the life of his subcontracts, Subcontractor's Public Liability and Property Damage Insurance of the types and in the amounts as may be applicable to his Work, which type and amounts shall be subject to the approval of the Owner, or (b) 67 insure the activities of his subcontractors in his own policy. Coverage required of Contractor and any of its subcontractors shall be primary over any insurance or self- insurance program carried by Owner. 17. Indemnification. The Contractor shall, to the fullest extent permitted by law, indemnify and hold harmless Owner and any of its officials, boards, officers, agents and employees against any losses, claims, damages or liabilities for which Owner or its officials, boards, officers, agents, or employees may become subject to, insofar as any such losses, claims, damages or liabilities arise out of, directly or indirectly, this Agreement, the Work, or are based upon any performance or nonperformance by Contractor or any subcontractor or anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable; and Contractor shall reimburse Owner for any and all legal and other expenses including attorney fees incurred by Owner in connection with investigating or defending any such loss, claim, damage, liability or action. This indemnification shall not apply to claims by third parties against Owner to the extent that Owner is liable to such third party for such claim without regard to the involvement of the Contractor. To the extent applicable, nothing shall be interpreted as a waiver of Owner's rights under the Governmental Immunity Act or other protections available to it under the law. This paragraph and the requirement to indemnify Owner and any of its officials, boards, officers, agents or employees shall survive termination or expiration of this Agreement. 18. Changes in the Work may be accomplished after execution of the Agreement, and without invalidating the Contract Documents, only by Change Order, subject to the limitations stated in the Contract Documents. A Change Order will be used to document any extension of the Contract Time approved in accordance with the Contract Documents or a change in the quantities (additive or deductive) set forth in Exhibit A to the Agreement (Contractor's Bid Form) (without any change in the Unit Prices). A Change Order shall be a written order to the Contractor signed by Owner to change the Work. 19. Claims. 19.1 A "Claim" is a demand or assertion by one of the parties seeking, as a matter of right, an adjustment or interpretation of the Contract Document terms, payment of money, extension of time or other relief with respect to the terms of the Contract Documents. 19.2 Pending final resolution of a Claim, Contractor shall proceed diligently with performance of the Contract Documents and Owner shall continue to make undisputed payments in accordance with the Contract Documents. 19.3 If Contractor contends that any order from Owner or other event or occurrence shall cause Change(s) in the Work entitling Contractor to adjustment to the Base Bid Price (as the same relates to quantity, but not including Unit Prices) or Contract Time, Contractor shall provide a written notice of claim ("Notice of Claim' } to Owner as provided herein. Such Notice of Claim must clearly identify the order or event which is b relied upon and contain a clear statement of why it constitutes a basis for adjustment. Said Notice of Claim shall also include a designation of the provision or provisions in the Contract Documents on which the Claim is based and the amount of time and compensation claimed. All costs, expenses, damages and extensions of time claimed as a result of this alleged change shall be described in reasonable detail under the circumstances together with complete supporting documentation. 19.4 All Claims for increases in the Base Bid Price shall be made in writing to Owner as soon as reasonably practicable but in all events within seven (7) days of Contractor's knowledge of the circumstances giving rise to such Claim. In making a Claim for an increase in the Base Bid Price, Contractor shall provide Owner with written documentation concerning the Claim, including but not limited to the specific reasons for the Claim and the amount of the Claim. Any such Claim for increase in the Base Bid Price may result in an adjustment in the quantities set forth in Exhibit A to the Agreement, but under no circumstances shall there be an adjustment to the individual Unit Prices. In the event that Contractor fails to timely submit a Claim for an increase in the Base Bid Price or Contract Time, or if additional Work is performed prior to the approval of such a Claim, no equitable adjustment shall be made to the Base Bid Price or Contract Time as a result of such Work. Notwithstanding the foregoing, prior notice is not required for Claims relating to an emergency endangering life or property, in which case Contractor shall act, at Contractor's discretion, to prevent the threatened damage, injury or loss. 19.5 Except as expressly provided in the Contract Documents, Contractor shall not be entitled to any extension of the Contract Time. If Owner finds that Contractor is entitled to any extension of the Contract Time, Owner's determination as to the total number of days extension shall be based upon the currently approved Project Schedule and on all data relevant to such extension. Such data shall be included in an amendment to the Project Schedule based upon a Change Order executed in accordance with the Contract Documents. Actual delays in activities which, according to the Project Schedule, do not affect the critical path shall not be the basis for a Change Order with respect thereto. 19.6 All Claims for extensions of the Contract Time shall be made in writing to Owner as soon as reasonably practicable but in all events within five (5) days of Contractor's knowledge of the first instance of delay, and the circumstances and activities leading to such claim shall be indicated or referenced on Contractor's daily report for the day(s) affected. However, it is specifically acknowledged that no change in the Project Schedule shall be effective unless and until a Change Order is properly executed in accordance with the Contract Documents. In making a Claim for an extension of time as a result of a delay, Contractor shall provide Owner with the following specific information: nature of the delay; date (or anticipated date) of commencement of delay; activities on the Project Schedule affected by the delay, and(or) new activities delay, and their relationship with existing activities; identification of person(s) or organization(s) or event(s) responsible for the delay; anticipated extent of delay; and recommended action to avoid or minimize the delay. 7 19.7 All claims, disputes, controversies and other matters in question between Owner and Contractor shall, in the first instance, be subject to good faith negotiations between the parties. Either party may notify the other of a claim or dispute. Within fifteen (15) days after the delivery of such notification, or such longer period as the parties may mutually agree, the parties shall meet in a good faith to resolve any claims or disputes. In the event the parties cannot reach an agreement then any and all remaining claims, disputes or controversies related to the Contract Documents, or breach thereof, shall be litigated in the District Court for Eagle County, Colorado, which shall be the sole and exclusive forum for such litigation. The parties further acknowledge and agree that Owner shall have the right, but not the obligation, to join any consultant and (or) subcontractor in any such meeting and (or) litigation. 20. Progress Payments: If the Project is subject to progress payments, not more often than once a month, Contractor shall submit to Owner an application for payment filled out and signed by Contractor covering the Work completed as of the date of the application, and accompanied by such supporting documentation as Owner may reasonably require based on the Base Bid PricelUnit Prices. If payment is requested on the basis of materials and equipment not incorporated in the Work, but delivered and suitably stored at the site or at another location agreed to in writing, the application for payment shall also be accompanied by such data, satisfactory to Owner, as will establish Owner's title to the material and equipment, and protect Owner's interest therein, including applicable insurance. Each subsequent application for payment shall include an affidavit of Contractor stating that all previous progress payments received on account of the Work have been applied to discharge in full all of Contractor's obligations reflected in prior applications for payment. The amount of retainage with respect to progress payments will be as set forth in the Agreement. Owner will, within ten (10) days after receipt of each application for payment, either indicate in writing a recommendation of payment, or return the application to Contractor indicating in writing its reasons for refusing to recommend payment. In the latter case, Contractor may make the necessary corrections and resubmit the application. Owner shall, within twenty (20) days of recommendation of payment, pay Contractor the amount recommended. 21. Final Payment: Upon written notice from Contractor that the Work is complete, Owner will make a final inspection with Contractor, and will notify Contractor in writing of all particulars in which this inspection reveals that the Work is incomplete or defective. Contractor shall immediately take such measures as are necessary to remedy such deficiencies. Defects are those identified by an Eagle County Official(s) and shall be judged on quality by that Official(s). 8 After Contractor has completed all such corrections to the satisfaction of Owner, and delivered all maintenance and operating instructions, schedules, guarantees, bonds, certificates of inspection, marked -up record documents or as -built drawings covering all of the Work, Contractor may make application for final payment following the procedure for progress payments. The final application for payment shall be accompanied by all documentation called for in the Contract Documents, and such other data and schedules, releases and waivers as Owner may reasonably require. Contractor, upon request, will furnish receipts or releases in full or an affidavit of Contractor that the releases and receipts include all labor, services, material, and equipment for which lien could be filed, and that all payrolls, material, and equipment bills, and other indebtedness connected with the Work, for which Owner might in any way be responsible. 21.1 The making of final payment shall constitute a waiver of all claims by the County except those arising from: a. Unsettled claims; b. Faulty or defective Work appearing after completion of the Work; c. Failure of the Work to comply with the requirements of the Contract Documents; or d. Terms of any warranties or special warranties required by the Contract Documents. 21.2 The acceptance of final payment by Contractor shall constitute a waiver of all claims by Contractor except those previously made in writing and separately identified by Contractor as unsettled in the final Application for Payment. 21.3 All provisions of the Contract Documents including without limitation those establishing obligations and procedures or surviving termination or expiration hereof, shall remain in full and effect notwithstanding the making or acceptance of final payment. 21.4 No payment, including final payment, shall be construed as an acceptance of defective or incomplete Work, and Contractor shall remain responsible for its performance conforming with the requirements of the Contract Documents. 22. Final payment is subject to the Final Settlement requirements and time periods set forth in C.R.S. §38-26-107. 23. Contractor warrants and guarantees that title to all Work, materials, and equipment covered by any application for payment, whether incorporated in the Project or not, will pass to Owner at the time of payment free and clear of all liens, claims, security interests, and encumbrances (in these General Conditions referred to as "Liens"). 24. Contractor's obligation to perform and complete the Work in accordance with the Contract Documents shall be absolute. Neither the recommendation of any progress or final payment nor the payment by Owner to Contractor under the Contract Documents, 9 nor any use or occupancy of the Work or any part thereof by Owner, nor any act of acceptance by Owner, nor any failure to do so, nor any correction of defective Work by Owner shall constitute an acceptance of Work not in accordance with the Contract Documents or a release of Contractor's obligation to perform the Work in accordance with the Contract Documents. 25. If Contractor fails to correct Work which is not in accordance with the Contract Documents, the Owner may direct the Contractor to stop the Work until the correction is made. 25. Contractor shall promptly correct Work rejected by Owner as failing to conform to the requirements of the Contract Documents and Contractor shall bear the cost of correcting such rejected Work. 27. Contractor warrants to Owner that: (i) materials and equipment furnished under the Contract Documents shall be of first class quality and new unless otherwise required or permitted by the Contract Documents; (ii) the Work shall be free from defects and deficiencies; (iii) the Work shall conform to the requirements of the Contract Documents, applicable laws and applicable permits; and (iv) the Work shall be performed in a good workmanlike manner. All guarantees or warranties of equipment or materials furnished to Contractor or any subcontractor(s) by any manufacturer or supplier shall be for the benefit of Owner. Contractor shall and hereby does covenant, warrant and agree that it shall repair or replace any and all of the Work, together with other Work which may be displaced in so doing, that does not conform with the requirements of this Section 27, without any cost to Owner for a period of twelve (12) months following the date of completion of the Work. This obligation shall survive both final payment for the Work or designated portion thereof and termination of this Agreement. Further, any Work corrected in accordance with this Section 27 by Contractor, shall be subject to an additional one (1) year warranty from the date of correction on the same terms and conditions as the initial warranty. The extended warranty shall only apply to the items of Work requiring correction. 28. Contractor warrants and guarantees to Owner that all Work will be in accordance with the Contract Documents and will not be defective. Prompt notice of all defects shall be given to Contractor. If, within twelve (12) months following the date of completion of the Work, or such longer period of time as may be set forth in the Agreement (including the bid), prescribed by law, prescribed by the terms of any applicable warranty given by a materials supplier or required by or a part of the Agreement, any Work is found to be defective, Contractor shall promptly, without cost to Owner, and in accordance with Owner's written instructions, either correct such defective Work, or, if it has been rejected by Owner, remove it from the site, and replace it with non -defective work. If Contractor does not promptly comply with the terms of such instructions, or in an emergency where delay would cause serious risk of loss or damage, Owner may have the defective Work corrected or the rejected, removed and replaced, and all direct and indirect costs of such removal and replacement, including compensation for additional professional services, shall be paid by Contractor. Any defective Work corrected by Contractor in accordance 10 with this Section 28, shall extend the warranty for an additional one (1) year from the date of the correction of the defective Work on the same terms and conditions as the initial warranty. The extended warranty shall apply only to the items of Work requiring correction. 29. If Contractor defaults or neglects to carry out the Work in accordance with the Agreement and fails within a seven day (7) period after receipt of written notice from the Owner to correct such default or neglect with diligence and promptness, the Owner may, without prejudice to other remedies, correct such deficiencies. In such case, the Agreement may be terminated by Owner or a Change Order shall be issued deducting the cost of correction from payments due the Contractor. The cost of correcting such deficiencies set forth in said Change Orders shall be calculated based upon the Unit Prices, plus Owner's actual, out-of-pocket expenses plus a surcharge equal to five percent (S%a). 30. The performance of the Work may be terminated at any time in whole, or from time to time in part, by Owner for its convenience. Any such termination shall be effected by delivery to Contractor of a written notice ("Notice of Termination") specifying the extent to which performance of the Work is terminated and the date upon which termination becomes effective. After receipt of a Notice of Termination, and except as otherwise directed by Owner, Contractor shall, in good faith, and to the best of its ability, do all things necessary, in the light of such notice and of such requests in implementation thereof as Owner may make, to assure the efficient, proper closeout of the terminated Work (including the protection of Owner's property). Among other things, Contractor shall, except as otherwise directed or approved by Owner: a. stop the Work on the date and to the extent specified in the Notice of Termination; b. place no further orders or subcontracts for services, equipment or materials except as may be necessary for completion of such portion of the Work as is not terminated; C. terminate all orders and subcontracts to the extent that they relate to the performance of Work terminated by the Notice of Termination; d. assign to Owner, in the manner and to the extent directed by it, all of the right, title and interest of Contractor under the orders or subcontracts so terminated, in which case Owner shall have the right to settle or pay any or all claims arising out of the termination of such orders and subcontracts; e. with the approval of Owner, settle all outstanding liabilities and all claims arising out of such termination or orders and subcontracts; and f. deliver to Owner, when and as directed by Owner, all documents and all property which, if the Work had been completed, Contractor would be required to account 11 for or deliver to Owner, and transfer title to such property to Owner to the extent not already transferred. In the event of such termination, there shall be an equitable reduction of the Base Bid Price to reflect the reduction in the Work. t2 Exhibit D Certificates of Insurance N ACaRO�DATE CERTIFICATE OF LIABILITY INSURANCE (MNL'DD•YYYY) ��. On; 1V2a17 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURERS), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, Subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME' Marsh USA. Inc ----.-.•-.— • _ PHONE FA]( 1166 1165 Avenue of the Americas New York, NY 10036 E-MAIL AM. NewYork.Ceas@marsh.com Fax: 212-948.0500 ADDRESS: _ ___ INSURERS AFFORDING COVERAGE NAJC MED EXP (Any one person) $ �a,aao INSURER A_: ACE American Insurance Company 22667 _ INSURED INSURER B : Indemnily Insuranoe Company of Norlh America 43575 Kilgore Comparies, LLC - ---- dba Elarn Conslructior. INSURER C : Berkshire Hathaway Specialty 19suraRce Company 22276 PO Box.869 •�`-- Magna. UT 84044 INSURER D : INSURER E: INSURER F COVERAGES CERTIFICATE NUMBER: NYC -0087130454-03 REVISION NUMBER:10 THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS - EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR' E ADDL S116R LICY FF POLICY EXP TYPE OF INSURANCE IPO LTR POLICY NUMBER MM'DDrYYYY MM+DDr LIMITS A X COMMERCIAL GENERAL LIABILITY 'I1 DO G27861C-39 1131.12016 12+31017 EACH OCCURRENCE s 2;1000,000 DAMAGE TO RENTED _ J CLAIMS MADE OCCUR PREMISES Ea xcurrence $ 1.000.000 MED EXP (Any one person) $ �a,aao I PERSONAL & ADV INJURY $ 2,aaa,aao GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 4,000,000 RO- X POLICY 1:1 ]ECT L LOC ^PRODUCTS - COMP. -OP AGG • $ 4,000.000 I OTHER: $ A AUTOMOBILE LIABILITY 'ISA H09053293 1201+2016 12'3112017 COMBINED SINGLE LIMIT S 5.000.0100 Ea accident) •..., _ _�� x ANY AUTO BODILY INJURY (Per person) $ ALL OWNED SCHEDULED AUTOS AUTOS BODILY INJURY [Per accident] 5 x NON-OWNED 71. _ PROPERTY DAMAGE $ HIRED ALJT05 AUTOS mer acdcSn SIR $ 506,000 C X UMBRELLA LIAR X OCCUR `42-UMO.302383-102 12"31+21016 1213112{117 EACH OCCURRENCE $ 1:oaa,aoo S EXCESS LAR CLAIMS -MADE AGGREGATE $ 1,000,aoo $ DED RETENTION $ B WORKERS COMPENSATION 'WLR 049106476 (AOS) 12/31/2016 12?3112017 X PER ❑TH- ANO EMPLOYERS' UABIU-rY VIN STATUTE ER .ANY PROPR:ETORrPARTNER?EXECUTIVE 'SCF 049106518 WI .12+31+21016 ) 12131;2017 E. L. EACH ACC iDE NT 5 1,1000.000 OAF CERIMEMBER EXCLUDED? F NIA: --.—.- E -L DISEASE • EA EMPLOYEE 5 1.000.000If (Mandatory In NH] yes, describe under -- -- E.L. DISEASE - POLICY LIMIT $ 1,000,0010 ❑ESCRIPTION OF OPERATIONS below i DESCRIPTION OF OP ER ATiONS; LOCATIONS; VEHICLES (ACO RD 101, Additional Remarks Schedule, may ba attached if more space is required) Eagle Coimy is included as ada tional insured ;exceptworkers'rampensauon) where required by w, tten contracl. This nsitrance is primary and non-contributory over any existing ins urarce and limited to liability arising out al the operations of the named insured and where required by written con 1racl. Wa ve! o1 Subr-og8tion is app 1;cab, e where required by written contract. 4 izn 1IF 1Il 1 C nV ii-UCR Eagle County PO Box 250 Eagle, CO 81631 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE of Marsh USA Inc, Rudy P. Milfort C 1588-2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014/01) The ACORD name and logo are registered marks of ACORD